On
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board

Before
HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.

JAMES
E. GRAVES, JR., Circuit Judge

Adams
and Associates, Inc. ("Adams") and McConnell,
Jones, Lanier & Murphy LLP ("MJLM") petition
for review of an order of the National Labor Relations Board,
holding them liable for unfair labor practices in violation
of the National Labor Relations Act, 29 U.S.C. § 151
et seq. Adams and MJLM operate a Job Corps Youth
Training Center in Sacramento, California, under a contract
with the Department of Labor. The allegations in this case
arose from Petitioners' successorship to the former
contractor, Horizons Youth Services, LLC
("Horizons"). During the period in which it
operated the Center, Horizons had a collective-bargaining
agreement with Sacramento Jobs Corps Federation of Teachers,
AFT Local 4986, American Federation of Teachers (the
"Union"). The Board's order found that Adams
violated Sections 8(a)(3) and (1) of the Act by
discriminatorily refusing to hire five incumbent employees in
order to avoid an obligation to bargain with the Union; and
violated Sections 8(a)(5) and (1) by unilaterally imposing
initial terms and conditions of employment on the unit
employees and banning Union president Genesther Taylor from
the Center. The Board further found that MJLM and Adams are
joint employers and are jointly and severally liable for the
aforementioned violations. The Board cross-petitions for
enforcement of its order. For the reasons that follow, we
deny the petition for review and grant the Board's
cross-petition for enforcement of the order.

I.
BACKGROUND

MJLM
and Adams jointly bid for a contract with the Department of
Labor ("DOL") to operate the Job Corps Center in
Sacramento (the "Sacramento Center" or the
"Center"). The Job Corps program administered by
the DOL provides academic and vocational training to
economically disadvantaged youth, ages sixteen to
twenty-four, at residential centers throughout the United
States. Both companies have contracts to operate various Job
Corps centers across the country. In early February 2014, the
DOL awarded the primary contract to MJLM to operate the
Center with Adams as its subcontractor for residential,
wellness, recreation, counseling, and career services. MJLM
has "overall responsibility for management of the
Center" and "directly handles education and
training, maintenance, finance, and administration."
Horizons had been operating the Center since 2009. Its
collective-bargaining agreement ("CBA") with the
Union covered all bargaining unit employees, which included
"[a]ll full-time Residential Advisors (RA),
Non-Residential Advisors, and Day Residential Advisors
employed at the [Center]." Horizons employed 26
bargaining unit RAs, who oversaw the students residing in the
Center's dormitories. The most recent agreement between
Horizons and the Union was effective by its terms until June
2013, but had been extended to March 9, 2014.

Transition
Process Begins

In
early February 2014, MJLM and Adams opened a shared
transition office in the Sacramento Center. Both Adams and
MJLM personnel participated in the transition. From Adams,
the transition management team consisted of Executive
Director Jimmy Gagnon, Executive Director of Human Resources
Valerie Weldon, and Deputy Center Director Kelly McGillis;
from MJLM, Partner Sharon Murphy, HR Director Joyce Barrett,
and Center Director Erica Evans participated. Adams' CEO
Roy Adams ("Roy") and Vice President for Human
Resources and General Counsel Tiffinay Pagni provided
additional support from Adams' headquarters. Evans had
been the Horizons Center Director and was hired by MJLM to
fill that same position. McGillis directly reported to Evans.

On
February 11, the Union notified MJLM that it was the
exclusive collective-bargaining representative of the unit
employees and requested information concerning the hiring
process. On February 13, Adams responded to the Union and
stated that it would be responsible for hiring and employment
of the Center's RAs. That same day, Gagnon met with a
group of Horizons RAs to announce the transition and advise
them about the hiring process. Former Horizons RA and Union
President Taylor attended the meeting. She later testified
that Gagnon told the RAs that they had been "doing a
really good job" and that "aside from disciplinary
issues, he was 99 percent sure that [they] would all have a
job" after the transition. Gagnon also stated that Adams
planned to reduce the number of RAs from twenty-six to
fifteen, but would also hire five people in the new position
of Residential Coordinator ("RC"). RCs would have
roughly the same job duties as RAs, but would also fill in
for dormitory supervisors and shift managers when necessary.
The Horizons employees were then invited to apply for up to
two available positions and given twenty-four hours to return
completed applications. They were permitted to review job
descriptions at the meeting, but Taylor's request for
copies of the job descriptions was denied. Fourteen incumbent
RAs applied for the fifteen available RA positions.

The
following day, the Union demanded that Adams recognize and
bargain with it as the representative of the RAs. Adams did
not respond. Also on that day, Taylor visited the transition
office to submit her employment application. She again
requested copies of the job descriptions and asked Gagnon
additional questions about the transition. Gagnon said that
he was unable to provide copies or answer any of her
questions and directed her to contact Pagni. Taylor also
asked McGillis for a blank employment application for a
Horizons RA on medical leave. McGillis referred Taylor to
Weldon.

The
Hiring Process

The
transition period was put on hold for two weeks during a
contract appeal and resumed in late February. Although Adams
led the hiring process, both Adams and MJLM personnel
interviewed applicants and made hiring recommendations.
Gagnon made the final hiring decisions. In filling RA
positions, Adams was required to follow Executive Order 13495
Non-Displacement of Qualified Workers under Service Contracts
("EO 13495"). EO 13495 incorporated a right of
first refusal for displaced employees and required successor
contractors to offer employment to all "qualified"
incumbent employees of the predecessor contractor. EO 13495
also required the successor to issue employment offers no
later than 10 days prior to the commencement of operations.
To comply with EO 13495, Adams, through Pagni, created a
"Justification for Disqualification of Potential
Employment" form ("Disqualification Form"),
which the transition team used to document the reasons for
not hiring any incumbent applicants.

It is
Adams's practice in such transitions to hire management
personnel first, in part so that they can provide input on
the performance of incumbent employees. A new
contractor is typically not given access to the former
contractor's personnel records and that was the case at
the Sacramento Center. Horizons, however, did provide a list
of all its current employees, including their job titles and
hire and seniority dates ("Horizons List I").

After
Adams hired former Horizons dorm manager, Lee Bowman,
McGillis shared Horizons List I with Bowman and sought her
feedback on RA applicants.[1] Bowman placed an asterisk next to the
names of incumbent RAs she recommended for hire and a dot
next to those whom she did not recommend hiring. McGillis
also annotated the list with Bowman's comments. Horizons
List I was later copied with Bowman's dots and asterisks,
but not McGillis' annotations, into another list
("Horizons List II"). McGillis testified that the
purpose of duplicating the list was to eliminate a comment
regarding an employee on medical leave, out of concern that
it violated the individual's privacy rights under the
Health Insurance Portability and Accountability Act. Gagnon
rewrote McGillis' other annotations into Horizons List
II, which McGillis signed with the original date. Horizons
List I no longer existed at the time of trial.

Based
on Bowman's comments, McGillis completed Disqualification
Forms for five incumbent applicants, whom Adams did not hire:
Genesther Taylor, Shannon Cousins-Kamara, Andre Lang, Macord
Nguyen, and Azaria Ting. According to McGillis, the forms did
not automatically disqualify the applicant, but were simply
one piece of information Adams considered in hiring. Adams
completed Disqualification Forms for nine of the fourteen
incumbent RA applicants. The transition team nonetheless
interviewed all fourteen. For each applicant, interviewers
filled out an Interview Evaluation Form and submitted it to
Gagnon and Weldon. Applicants were rated in nine categories
on a scale of one to four, with one being excellent and four
being unsatisfactory.

McGillis
interviewed Taylor on February 28 and recommended that she
not be hired. McGillis admitted that sometime after the
interview, she amended Taylor's Interview Evaluation
Form, downgrading several of Taylor's interview scores
from 2 (average) to 3 (below average). According to McGillis,
she made the changes because she realized after interviewing
other applicants that she had scored Taylor "much higher
than she deserved."

McGillis
also interviewed Cousins-Kamara. McGillis testified that
Cousins-Kamara provided a lot of information, including that
she had been "awarded a dorm of the month recognition
month after month and was employee of the month, " which
"sounded almost too good to be true." Former RA
Andre Lang, however, testified that he had worked with
Cousins-Kamara in the Shasta dorm and that all the
information Cousins-Kamara related was true. McGillis
completed an Interview Evaluation Form for Cousins-Kamara,
but after speaking with Bowman, she shredded the initial form
and replaced it with a second form recommending against
hiring.

By late
February or early March, when there were only a few RA
positions left to fill, Gagnon and Weldon had a conversation
about four RA applicants for whom Disqualification Forms had
been completed, but who interviewed well and received good
scores: Diane Calahan, Andre Lang, Vincente Moran, and Jill
Ostrowski. Weldon testified that she told Gagnon, "We
can't not hire these employees . . . just because they
are part of the Union." Gagnon decided to extend offers
to all four, although later rescinded the offer to Lang after
a background check indicated a potential discrepancy in
employment dates for a position he held before working at
Horizons.

Adams
ultimately hired nine incumbent RAs for the fifteen available
positions. Adams filled the remaining RA positions with
non-bargaining unit Horizons substitute RAs and a Horizons
custodian. Four of the five substitute RAs had been employed
by Horizons for only a few months. Because Adams had hired a
majority of former bargaining unit employees, it incurred an
obligation to bargain with the Union.

Post-Hiring
Events

On
March 4, after it became clear that Adams had incurred a
bargaining obligation, Roy sent an email to hiring committee
members, including Pagni, Gagnon, and Weldon, which stated:
"Unfortunately, we hired the majority of the union
members at Sacramento and we, therefore, must negotiate a
Collective Bargaining Agreement and incur other associated
union legal costs." The following week, Roy visited the
Sacramento Center and pulled Weldon aside to ask her what
happened. She related her conversation with Gagnon regarding
the four incumbent RAs whose interviewers had recommended
hiring. Weldon testified that Roy "was very angry and he
said that we screwed up. The Union was now involved and he
was not happy."

In late
March, Weldon was sent back to Sacramento to gather
additional information about various non-hires because Pagni
felt that the documentation of their disqualification may not
have been sufficient to comply with EO 13495. While Weldon
was there, she received an email from Pagni with instructions
for gathering supplemental information. Pagni wrote that the
information provided by Evans was not "really
helpful" and that she "also mentioned the union in
her comments. Union involvement was not questioned or used as
a DQ'ing factor for these individuals and cannot be used
in these further supporting documents. We need to take any
mention of union out."

On
March 22, Roy sent a "Memorandum for Personnel Files of
Tiffinay Pagni and Valerie Weldon" to Pagni. The
memorandum, titled "Significant Performance Concerns,
" stated that Roy was "very concerned about the
performance of Executive level Human Resource staff with
oversight responsibility for the transition at the Sacramento
Job Corps Center." Among the priorities for the
transition that were not achieved, he listed "[w]ithin
compliance guidelines, avoid union recognition" and
"[p]rotect the company from expensive union-related
costs." The memorandum concluded:

On
March 27, Pagni sent an email to Weldon, forwarding Roy's
Memorandum and providing additional performance feedback.
Pagni stated that "[w]e were . . . expected to assure
disqualification information was well-documented and
defensible and to avoid union recognition in order to protect
the company from significant union related expenses and
challenges. Neither of these things happened[.]" Pagni
further commented that "[i]n preparing a recent summary
of individuals who applied versus those who were hired, there
are ample incumbent Sub RA's on the list. These incumbent
employees could have been used to fill the RA positions
without acknowledging the union. Roy raised this issue
repeatedly." On April 25, Pagni presented Weldon with a
Final Written Warning, copying Roy and Adams President of
Operations Susan Larson. One of the performance concerns
raised was that Weldon had failed to conduct "Union
Avoidance activities pursuant to policy, including
training[.]"

Commencement
of Operations and Changes to Employment Terms and
Conditions

Petitioners
began operating the Center on March 11. Staff were employed
under new terms and conditions. Specifically, Petitioners had
ceased to give effect to the CBA's progressive
discipline, just cause, and grievance provisions; implemented
at-will employment, new disciplinary policies and procedures,
and a mandatory arbitration policy for employment-related
disputes; modified the terms of the existing probationary
period; replaced existing health benefits with a new plan;
and changed some RAs' schedules from fixed shifts to
rotating shifts. Adams also assigned RA work to employees in
the new RC position, which was not part of the bargaining
unit. Adams notified new hires of these changes in their
offer letters and employment agreements.

Between
April and September, Adams discharged four RAs: Sheila
Broadnax, Rolando Aspiras, Bienvenido Viloria, and Vincente
Moran. They were discharged without recourse to the CBA's
progressive discipline process. Adams did not notify the
Union about the discharges.

Union
Negotiations

On
March 11, the Union renewed its demand for recognition and
bargaining. On March 28, Adams recognized the Union as the
bargaining representative for RAs and agreed to bargain.
Adams, however, refused to allow Taylor access to the Center
to attend bargaining sessions. As a result, the first three
bargaining sessions were held at the Union's office.
After the third session, Adams agreed to allow Taylor access
to the Center. The fourth session took place there.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Procedural
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